Liddiard, R (on the application of) v The First Secretary of State

A certificate of lawful use must be read in the terms in which it was granted. It may define the premises covered by the certified use, including by identifying the absence of any residential curtilage. Whether land forms part of a curtilage is ordinarily a question of fact and degree, but the certificate may itself establish the relevant boundary.

In reviewing a planning inspector’s decision, the court asks whether the decision-maker considered the material issues, gave intelligible and adequate reasons, avoided irrelevant considerations, and reached a conclusion reasonably open to a properly directed decision-maker. The decision letter must be read as a whole and with reasonable flexibility.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against an inspector’s refusal of retrospective planning permission for alterations and extensions to a dwelling at Summerdale Farm, situated in an Area of Outstanding Natural Beauty. The claimant relied on an existing certificate of lawful use for residential use of part of the buildings, arguing that a surrounding area should be treated as residential curtilage.

The claimant also alleged inadequate reasons, failure to consider relevant matters including Planning Policy Statement 7 and nearby development, and irrationality. The central issues were the legal effect and scope of the certificate, and whether the inspector’s decision letter adequately addressed the material planning considerations.

1. Appeal dismissed. The inspector’s decision refusing retrospective planning permission was lawful. The defendant’s costs were summarily assessed at £5,672. Permission to appeal was refused.
2. The certificate of lawful use clearly certified residential use of the identified building and expressly excluded any residential curtilage or garden. A certificate cannot be treated as including premises outside the use and area certified merely because a dwelling would commonly have amenity space.
3. Curtilage is normally a question of fact and degree. Its extent, or its absence, may however be established by the terms of a certificate, the extent of planning permission, or the physical geography of the premises. Here the certificate defined the relevant premises and excluded any curtilage, so the inspector was correct to treat area F as outside the certified residential use.
4. The decision letter was to be read as a whole, in a reasonable and flexible manner, rather than as a contract or statute. The inspector was not required to repeat the certificate’s significance in each section of the decision. Once the certificate was correctly understood, its relevance had been adequately addressed.
5. Planning judgment belonged to the inspector. He was required to consider material considerations and give sufficient reasons on the principal controversial issues, but need not mention every consideration expressly. The inspector had sufficiently engaged with the substance of Planning Policy Statement 7 through his consideration of the development plan policies and the rural character of the Area of Outstanding Natural Beauty. The absence of detailed evidence about other nearby developments did not prevent him from considering the potential for similar opportunities, while he was equally entitled to note that he lacked sufficient details to assess the likely impact of the nearby barn conversion.
6. The resulting conclusion that the works would materially intensify residential use and harm the rural character of the area was one reasonably open to the inspector. The claimant’s separate challenge based on unreasonableness therefore added nothing.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against the inspector’s refusal of retrospective planning permission. The inspector’s decision letter was dated 28 February 2005. The Administrative Court dismissed the appeal.